Opinion
No. 10-21-00266-CR
12-14-2023
Candace Delores RIOS, Appellant v. The STATE of Texas, Appellee
Donald McCarthy, Austin, Sterling A. Harmon, McLennan County Asst. District Attorney, Waco, Joshua Tetens, McLennan County District Attorney, Waco, for Appellee. Candace Delores Rios, Pro Se. Walter M. Reaves, Law Office of Walter M. Reaves PC, Waco, for Appellant.
From the 19th District Court, McLennan County, Texas, Trial Court No. 2016-20-C1, Hon. Thomas C. West, Judge
Donald McCarthy, Austin, Sterling A. Harmon, McLennan County Asst. District Attorney, Waco, Joshua Tetens, McLennan County District Attorney, Waco, for Appellee.
Candace Delores Rios, Pro Se.
Walter M. Reaves, Law Office of Walter M. Reaves PC, Waco, for Appellant.
Before Chief Justice Gray, Justice Johnson, and Justice Smith OPINION
MATT JOHNSON, Justice
Candace Delores Rios pleaded guilty to the first-degree felony offense of injury to a child. The trial court found Rios guilty, assessed her punishment at forty years in the penitentiary, and sentenced her accordingly.
Rios’s prior counsel filed a motion to withdraw and an Anders brief in support of the motion, asserting that he had diligently reviewed the appellate record and that, in his opinion, the appeal is frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Rios was notified by this Court and by counsel of her right to file a response, and she has done so.
[1] Rios’s current counsel has adopted prior counsel’s amended Anders brief filed with the Court on February 9, 2022, which demonstrates a professional evaluation of the record for error and compliance with the other duties of appointed counsel and additionally identifies several nonreversible issues related to the fees and costs assessed in the judgment and bill of costs, what we have termed an Allison brief. See Cummins v. State, 646 S.W.3d 605, 614 (Tex. App.—Waco 2022, pet. ref’d) (referring to Allison v. State, 609 S.W.3d 624, 628 (Tex. App.—Waco 2020, order) (per curiam)). When counsel files an Allison brief, we "will conduct an independent review of the record for reversible error involving the defendant’s conviction and sentence and then treat the briefed nonreversible error as a merits issue." Id. at 612. We conclude that counsel has performed the duties required of appointed counsel. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; High v. State, 573 S.W.2d 807, 812-13 (Tex. Crim. App. [Panel Op.] 1978); see also Kelly v. State, 436 S.W.3d 313, 319–20 (Tex. Crim. App. 2014); In re Schulman, 252 S.W.3d 403, 407–09 (Tex. Crim. App. 2008).
[2] When counsel files an Allison brief, the State is expected to file a response addressing the merits of the nonreversible error presented. See Cummins, 646 S.W.3d at 612. The State did not file a brief in response to counsel’s motion to withdraw and supporting Anders brief and waived responding to Rios’s pro se response.
[3–5] In reviewing an Anders appeal, we must, "after a full examination of all the proceedings, … decide whether the case is wholly frivolous." Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see Benson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 349–50, 102 L.Ed.2d 300 (1988); accord Stafford v. State, 813 S.W.2d 503, 509–11 (Tex. Crim. App. 1991). An appeal is "wholly frivolous" or "without merit" when it "lacks any basis in law or fact." McCoy v. Court of Appeals, 486 U.S. 429, 438 n.10, 108 S.Ct. 1895, 1902 n.10, 100 L.Ed.2d 440 (1988). After a review of the entire record in this appeal, we have determined the appeal to be wholly frivolous. See Bledsoe v. State, 178 S.W.3d 824, 826–28 (Tex. Crim. App. 2005).
[6] While we conclude there is no error that would require reversal of Rios’s conviction or sentence, the Allison brief, as noted, includes what we identify as Category 2 nonreversible errors that are not subject to procedural default. See Cummins, 646 S.W.3d at 616. Claims of error related to the assessment of fees and court costs, as in this case, may be raised for the first time on appeal. London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016).
[7] In cases such as this, appellate courts have the authority to reform judgments and to affirm as modified where nonreversible error is identified. Cummins, 646 S.W.3d at 610 n.2; Allison, 609 S.W.3d at 628. A court of appeals also has the authority to correct and reform a judgment to make the record speak the truth when it has the information to do so. See Tex. R. App. P. 43.2(b) (authorizing a court of appeals to "modify a trial court’s judgment and affirm it as modified"); see also Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993). We are also authorized to correct errors in a bill of costs independent of finding error in the trial court’s judgment. See Briceno v. State, 675 S.W.3d 87, 100–01 (Tex. App.—Waco 2023, no pet.); Cummins, 646 S.W.3d at 622 n.12 (citing Dulin v. State, 620 S.W.3d 129, 133 (Tex. Crim. App. 2021), and London, 490 S.W.3d at 508 n.5).
[8–10] Court costs are not required to be orally pronounced at sentencing as they are not punitive like fines or restitution and do "not alter the range of punishment to which the defendant is subject, or the number of years assessed." Weir v. State, 278 S.W.3d 364, 367 (Tex. Crim. App. 2009) (quoting Ex parte Huskins, 176 S.W.3d 818, 821 (Tex. Crim. App. 2005)). The imposition of court costs is mandatory under Article 42.16 of the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art. 42.16; Martinez v. State, 507 S.W.3d 914, 916 (Tex. App.—Waco 2016, no pet.). However, the court may only impose those costs that are statutorily authorized. See Johnson v. State, 423 S.W.3d 385, 389 (Tex. Crim. App. 2014). There must also be a basis in the record for the assessment of a cost. See id. at 390; see also Wolfenbarger v. State, 581 S.W.3d 455, 459 (Tex. App.—Texarkana 2019, no pet.).
[11] Rios initially challenged the assessment of $505 in total court costs in the certified bill of costs versus the schedule of court costs attached to the trial court’s judgment reflecting $475 in total court costs. Rios also contends that proper total court costs in this case amount to $409. This appeal was abated to the trial court pursuant to Rule 44.4(a) of the Rules of Appellate Procedure. See Tex. R. App. P. 44.4(a). The trial court clerk filed a supplemental record containing the trial court’s order on abatement and an amended certified bill of costs. This appeal was reinstated on August 14, 2023. Supplemental briefing by the parties was requested; however, no additional briefing was filed.
The amended certified bill of costs entered after the June 9, 2023 abatement hearing in the trial court reflects a total of $419 in assessed court costs, all of which are shown to be paid. Because the only issue raised by Rios is purely monetary, the voluntary payment of the fine and court costs rendered the appeal moot. See Dulin, 620 S.W.3d at 131. We therefore overrule Rios’s issue regarding assessed court costs.
We grant the motion to withdraw and affirm the judgment of the tidal court.
(Chief Justice Gray dissenting)
DISSENTING OPINION
TOM GRAY, Chief Justice
The only "properly" Certified Bill of Costs in this appellate record that I have been able to find is in the amount of $505.00 with the entire amount showing as due. (CR 95). The Court references certified copies of a document labeled as a Bill of Costs dated after the abatement order as a Certified Bill of Costs. I do not believe that it is properly certified. It is merely certified as a true and correct copy of a document in the District Clerk’s file. That, alone, does not make it a Certified Bill of Costs. See Tex. Code Crim. Proc. art. 103.006; Johnson v. State, 423 S.W.3d 385, 392-93 (Tex. Crim. App. 2014) (discussing the characteristics of a bill of costs according to the statutes). Specifically, the docu- ment which is being certified as a true and correct copy does not contain the certification regarding the content of the document, like the one referenced above at page 95 of the Clerk’s Record, for which the signatory attested:
I hereby certify the above to be a correct account of the cost chargeable in the above entitled and numbered cause up to this date.
Moreover, the judgment from which this appeal was taken, including the "Order to Withdraw Funds" inversely incorporated into the judgment, assesses $475.00 of "Court costs, fees, and/or fines and/or restitution …. " Until that judgment is corrected, or that amount is paid, there remains a live issue regarding the proper amount of such court costs in this appeal. Thus, whatever the referenced document is, it does not moot this issue.
Finally, as to costs, the manner in which we arrived at this point, via an abatement of the appeal and a remand to the trial court to review the assessment of mandatory court costs, remains subject to questions of its applicability and whether it was appropriate. See Carnley v. State, No. 10-21-00104-CR, 682 S.W.3d 287, 289–308 (Tex. App.—Waco Nov. 30, 2023) (publish) (Gray, C.J., dissenting). Nevertheless, and regardless of the outcome of that question, the fact remains that Rios has a judgment which appears to assess $475.00 of court costs against her, and she is entitled to a resolution of the issue as raised in the appeal regarding whether that amount is correct even if she has paid some portion of the court costs.
It does not appear that Rios was given the opportunity to respond to the jurisdictional mootness argument. Moreover, I note that if the funds were withdrawn from her inmate account based upon the withholding order, payment of the assessed court costs could hardly be said to be voluntary.
Accordingly, I cannot join the Court’s opinion or judgment and must respectfully dissent.
The irony in this appeal is that after abatement, on remand to the trial court, the appellant convinced the trial court that it had erroneously used the costs applicable to an offense that occurred on or after January 1, 2020, when it should have used an older costs statute because the offense occurred in 2015. The trial court, to correct its perceived error, used the costs schedule applicable at the time the offense was committed. But the Court, with one justice dissenting, has held that for an offense committed in 2015 but for which guilt and punishment was determined on or after January 1, 2020, the new costs schedule should be utilized. See Bradshaw v. State, 675 S.W.3d 78 (Tex. App.—Waco 2023, pet. filed).